Lecture 15 Feb. 28, 2018

Bernkrant v Fowler (Cal. 1961)

moderate and restrained interpretation

Bernhard v Harrah’s Club (Cal. 1976)

comparative impairment

2nd Restatement

§ 146. Personal Injuries In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence and the parties, in which event the local law of the other state will be applied.

§ 6. Choice-Of-Law Principles (1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

§ 145. The General Principle (1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 169. Intra-Family Immunity (1) The law selected by application of the rule of § 145 determines whether one member of a family is immune from tort liability to another member of the family. (2) The applicable law will usually be the local law of the state of the parties' domicil.

Phillips v. Gen. Motors Corp (Mont. 2000)

(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue, (d) the protection of justified expectations, (e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied.

The first factor we must consider under § 6(2) is the needs of the interstate and international system. On the facts of this case, this factor does not point toward the importance of applying any particular state's law. Rather, this factor supports the application of the Restatement approach, namely the law of the state with the most significant relationship to an issue. We believe the Restatement approach fosters harmonious relationship between states by respecting the substantive law of other states when those states have a greater interest in the determination of a particular issue litigated in a foreign jurisdiction. The Restatement approach is preferable, in our view, to the traditional lex loci rule which applies the law of the place of the accident which may be fortuitous in tort actions.

We must also consider the relevant contacts in regard to the basic policies underlying the particular field of law. This factor is of particular importance in situations where the policies of the interested states are largely the same but there are nevertheless minor differences between their relevant local law rules. In such instances, there is good reason for the court to apply the local law of the state which will best achieve the basic policy, or policies, underlying the particular field of law involved. This is not a case in which the policies of interested states are basically the same except for minor differences in their local rules. For example, although under Kansas and Montana law, manufacturers of defective products are strictly liable for injuries, North Carolina law does not permit strict liability in tort in product liability actions. Instead, it appears that the various interested states have reached different conclusions concerning the right level of compensation and deterrence for injuries caused by defective products. Therefore, we need go no further in addressing this contact.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include: (a) the place where the injury occurred, (b) the place where the conduct causing the injury occurred, (c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and (d) the place where the relationship, if any, between the parties is centered. These contacts are to be evaluated according to their relative importance with respect to the particular issue.

the place where the injury occurred Kansas

The purpose of a state's product liability statute is to regulate the sale of products in that state and to prevent injuries incurred by that state's residents due to defective products.   Any conduct the state of Kansas may have been attempting to regulate through § 60-3302 could not be implicated by the facts of this case as it involves neither a sale in Kansas nor an injury to a Kansas resident.

Kansas law provides for multiple defenses to a product liability claim Kansas law provides for multiple defenses to a product liability claim.   For example, Kansas law bars recovery for injuries occurring after “the time during which the product would be normally likely to perform or be stored in a safe manner.”   Kansas law also allows a party defending a product liability claim to assert that the injury causing aspect of the product was in compliance with the regulatory standards relating to design or performance at the time of manufacture.   Once again, the overriding purpose of Kansas's product liability laws is to establish the level of safety of products sold either in Kansas or to a Kansas resident.   Clearly, these rules regarding defenses were not enacted in order to grant a defense to a manufacturer when a non-Kansas resident is injured by a product not purchased in Kansas.

the place where the conduct causing the injury occurred NC (?)

The fact that the Byrds purchased the truck in North Carolina while residing there indicates that one of the purposes of North Carolina product liability law-the regulation of products sold within its borders- might be implicated by the facts of this case. However, we think it significant that a North Carolina court would not apply North Carolina law to these facts, even if the Byrds had remained in North Carolina; North Carolina still adheres to the traditional place of injury rule in tort cases. On the facts of this case, a North Carolina court would apply the law of Kansas because they still adhere to the “vested rights” theory that any right created by an injury is solely a product of the law of the territory in which that injury occurred. Accordingly, the scope of North Carolina product liability law does not include causes of action for products purchased in North Carolina by North Carolina residents which cause injury outside of North Carolina. This belies the significance of North Carolina's interest in having its law applied.

the domicil, residence, nationality, place of incorporation and place of business of the parties Mich. Mont.

For choice of law purposes, the public policy of a state is simply the rules, as expressed in its legislative enactments and judicial decisions, that it uses to decide controversies. The purpose of a choice of law rule is to resolve conflicts between competing policies. Considerations of public policy are expressly subsumed within the most significant relationship approach. In order to determine which state has the more significant relationship, the public policies of all interested states must be considered. A “public policy” exception to the most significant relationship test would be redundant.

Wood Bros Homes v Walker Adj Bureau (Colo. 1979)

Leflar – choice influencing considerations predictability of results maintenance of interstate and int’l legal orders simplification of judicial task advancement of forum interest choosing better rule of law

Milkovich v Saari (Minn. 1973)

Kell v. Henderson, 26 A.D.2d 595 (1966)

Leflar – choice influencing considerations predictability of results maintenance of interstate and int’l legal orders simplification of judicial task advancement of forum interest choosing better rule of law

On the consideration of governmental interest, Professor Leflar found adequate support for the decision rendered by the New York court. In so doing, he rejected the concept of the practical interest of the state in the supervision and safety of its state highways since the rule in question, unlike rules of the road and definitions of negligence, does not bear upon vehicle operation as such. Instead, he pointed out that the factor to be considered is the relevant effect the New York rule has on the duty of host to guest and the danger of collusion between them to defraud the host's insurer. New York's interest in applying its own law rather than Ontario law on these issues, he found to be based primarily on its status as a justice-administering state. In that status, it is strongly concerned with seeing that persons who come into the New York courts to litigate controversies with substantial New York connections have these cases determined according to rules consistent with New York concepts of justice, or at least not inconsistent with them. That will be as true for nondomiciliary litigants as for domiciliaries. This interest will not manifest itself clearly if the out-of-state rule does not run contrary to some strong socio-legal policy of the forum, but it will become a major consideration if there is such a strong opposing local policy.

In our search for the better rule, we are firmly convinced of the superiority of the common-law rule of liability to that of the Ontario guest statute. We can find little reason for the strict limitation of a host's liability to his guest beyond the fear of collusive suits and the vague disapproval of a guest ‘biting the hand that feeds him.’ Neither rationale is persuasive. We are convinced the judicial system can uncover collusive suits without such overinclusive rules, and we do not find any discomfort in the prospect of a guest suing his host for injuries suffered through the host's simple negligence.

Jepson v. Gen. Casualty Co. of Wisc. (Minn. 1994)

predictability of results maintenance of interstate and int’l legal orders simplification of judicial task advancement of forum interest choosing better rule of law

New York’s Neumeier Rules

Under the first Neumeier rule, if parties share a common domicile, and that domicile’s law has a loss allocating rule, then that law should control….

Babcock. two NYers, Ont. accident Reverse Babcock (Kell) Babcock two NYers, Ont. accident Reverse Babcock (Kell) two Ontarians, NY accident

Is domicile really relevant for all loss-allocating rules

The second Neumeier rule: P’s domicile’s loss-allocating rule would allow P to win D’s domicile’s loss-allocating rule would allow D to win Injury in one of those domiciles Then use place of injury

P (NY) guest of D (Ontario) host if accident in NY, then P wins accident in Ontario, then D wins

Third Neumeier rule, applicable to other split-domicile cases: usually governing law will be that of the place where the accident occurred, unless “displacing that normally applicable rule will advance the relevant substantive law purposes without impairing the smooth working of the multistate system or producing great uncertainty for litigants”

- loss-allocating rules burden domiciliaries (like unprovided-for cases) - true conflicts when injury occurs in neither person home state

Franciscans in Schultz also Guest (Ontario) sues Host (NY) if accident is in Ont use Ont law (what would Kramer say?) if accident is in NY use NY law

Edwards v. Erie Coach Lines Co. (NY 2011)

Ontario defendants?

Pa defendants?